United States District Court, D. Arizona
ORDER AND OPINION [RE: MOTION AT DOCKET 154]
JOHN W. SEDWICK, SENIOR UNITED STATES DISTRICT JUDGE
I. MOTION PRESENTED
At docket 154, third-party defendant Theodore Kritza (“Kritza”) moves for a declaration that the errata sheet to his deposition was timely submitted to the court reporter. Defendant, counter-claimant, and third-party plaintiff Richard Jefferson (“Jefferson”) opposes at docket 169. Kritza replies at docket 180. Oral argument was requested but would not assist the court.
The background giving rise to this litigation is described in some detail in the order at docket 183. It need not be repeated here.
Rule 30(e) provides that a deponent who requests an opportunity to do so prior to the conclusion of his deposition “must be allowed 30 days after being notified by the officer that the transcript or recording is available in which [to review and make changes].” Changes may be made in both form and substance. However, the reasons for the changes must be provided in a signed statement (“Statement”).
In his deposition Kritza testified that he, rather than Stratosphere Management, was the borrower on a $2 million promissory note. After the deposition, Kritza provided a Statement pursuant to Rule 30(e) in which he corrected his testimony to say that Stratosphere Management, rather than Kritza, was the borrower.
Kritza is motivated to request a declaration of the Statement’s timeliness by Jefferson’s argument in other motion papers that Kritza’s Statement is a “sham” because it was not timely provided to the court reporter. Jefferson relied on hearsay statements recounted by his own lawyer as the basis for the assertion of untimeliness.In contrast to Jefferson’s improperly supported assertion of untimeliness, Kritza’s papers include a declaration from the court reporter which demonstrates that the Statement was, in fact, timely provided.
In his response Jefferson argues that even if the Statement were timely, the change is substantive and must be disregarded as a sham, because the change was contrived to create a disputed issue of material fact with respect to pending dispositive motions. Jefferson relies on Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc.
In Hambleton, a deponent made untimely corrections to his deposition testimony in a signed errata, but the errata included no reasons for making the corrections. The Ninth Circuit opined that perhaps in some instances corrections that were only a day or two late might be considered, but noted: “A statement of reasons explaining corrections is an important component of errata submitted pursuant to FRCP 30(e), because the statement permits an assessment concerning whether the alterations have a legitimate purpose.” The appellate court also found the timing of the errata to be a problem, for it was not submitted until after an opponent’s motion for summary judgment had been filed. The court explained: “While the language of FRCP 30(e) permits corrections ‘in form or substance, ’ this permission does not properly include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment.”
Finally, in Hambleton, the appellate court noted that the record did not show that the deponent had requested a chance to review the transcript. Such a request is required by Rule 30(e).
The situation at bar differs sharply from the circumstances in Hambleton. First, the corrections made were timely submitted. Second, Kritza did offer an explanation for his changes, saying that he did not have the promissory note to consult when he answered the question at issue. Kritza also points out that the answer was given during the course of a seven-hour deposition. An examination of the exhibits supplied with the motion papers shows that Kritza’s deposition commenced at 9:06 AM, concluded at 6:00 PM, and that the corrected answer was transcribed at page 289 of the 293 page transcript. The court finds the explanation offered to be reasonable and credible, such that the change in the deposition testimony is considered to have been made for a legitimate purpose.
Third, and importantly, Kritza’s correction of the transcript was made well before either of the pertinent motions for summary judgment was filed. He made the correction some time before it was delivered to the court reporter on March 9, 2015.The two motions for summary judgment of concern here were each filed on May 29, 2015. It is appropriate to add that the correction saying that Stratosphere Management was the borrower is consistent with the promissory note itself, which shows that to be the ...